Solaimuthu vs State and Selvamani

A. Packiaraj, J.—This revision has been filed against the order passed by the Judicial Magistrate, Perambalur in Crl.M.P.No.1990 of 2002

in Crime No.30 of 2001, allowing the petition filed u/s 53 Cr.P.C by the respondent herein and directing the petitioner herein to appear for the

appropriate Medical Officer for Test according to the convenience.

The circumstances under which the said order came to be passed is as follows:

A complaint was given by the second respondent herein against the petitioner on 14.03.2001 stating that she was the resident of Badangi South

Street. That about 10 years prior to the filing of the case, she was married to one Devaraj and they were residing at Badangi. It is further stated

that at the time of their existence of marital bond, her brother by name Dharmadurai was also staying along with them. While that being so, there

appears to have been quarrels between her and the said Devaraj, in view of the fact that she was impotent to conceive a child. Further, it is

averred in the complaint that she was sent out of the matrimonial abode many times and was taken back. On one such occasion, when she along

with her brother had been to the house of her husband, namely Devaraj, she found him to be with the company of another girl. On being

questioned, they were beaten and chased out. After the said incident, the respondent appears to have been living with his brother at Badangi and

was doing work as a coolly. It is at that juncture, the petitioner herein, namely Solaimuthu got acquainted with the respondent and by assuring her

that he would marry, had sexual intercourse with her, whereby she became pregnant. When the said matter was reported to the petitioner, he had

asked her to abort the same. However, she was refused. Thereafter, the petitioner has not cared to marry her and even on repeated persistence

there was no signs of acceptance from the petitioner to marry the respondent. A child was born to the second respondent. Hence, she had

resorted to the filing of the present complaint.

It may not be necessary to go much into the facts of the case, suffice it to state that the Inspector of Police, namely the first respondent had filed

an application before the learned Magistrate to send the petitioner herein for DNA Test in order to find out whether the child born to Selvamani,

was fathered by Solaimauthu. On consideration of the submissions advanced, the learned Magistrate had allowed the said petition, against which

the present revision has been filed.

The learned counsel appearing for the petitioner would first submit that a person cannot be compelled to give blood as it is violative of Article

20(3) of the Constitution of India. I am afraid that this contention deserves to be rejected at the threshold itself, in view of the decision of the Apex

Court reported in The State of Bombay Vs. Kathi Kalu Oghad and Others, , wherein Article 20(3) of the Constitution of India has been discussed

and finally, Their Lordships of the Apex Court have held that merely asking the accused to give his signature, or thumb impression, is not violative

of Article 20(3) of the Constitution of India.

A further reading of the judgment cited supra, would show that Their Lordships have clarified the Article 20(3) of the Constitution of India to

mean that the accused cannot be compelled to be a witness against himself and emphasis has been made to the words ""to be a witness"". Added to

the above, it is also made clear that giving samples of blood, or obtaining signatures or thumb impressions would not make him as a witness to

testify against himself.

Coupled with the above, if we analyze the facts of the case that is available on hand, it is seen that the accused in this case has been asked to

give blood samples, which is more or less in the same line as that of giving finger print or thumb impression to the investigating agency and

therefore, there appears to be no violation of Article 20(3) of the Constitution of India. Consequently, the above argument deserves to be rejected

at the outset and the same is accordingly rejected.

However, the learned counsel relied on a decision of the Supreme Court reported in Goutam Kundu Vs. State of West Bengal and another, ,

wherein Their Lordships have held that a person cannot be compelled to give samples of blood for analysis without making out a case for it.

The facts in the above cited case is the converse of the case on hand. It is a case, where the wife filed a maintenance against her husband and he

having remained ex-parte, the maintenance was awarded. Consequent upon which, the husband preferred a revision and pending revision, he had

filed a miscellaneous case. In that proceeding, he had disputed the paternity of the child and prayed for blood group test of the child to prove that

he was not the father of the child. The said application was dismissed on two grounds, one being that there were other methods in the Evidence

Act to disprove the paternity and the other one is that it is settled law that medical test cannot be conclusive of paternity. Aggrieved by the said

order, the husband took the matter to the High Court and while dismissing the said revision, the learned Judge has held that as per Section 112 of

the Evidence Act during the continuance of valid marriage if a child is born that is a conclusive proof about the legitimacy and finally, Their

Lordships of the Apex Court, who had occasion to deal with the said case, while dismissing the appeal, have held that Section 112 of the Evidence

Act requires the party disputing the paternity to prove non-access in order to dispel the presumption and further, they went to hold that ""Access

and ""non-access"" mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual cohabitation"".

On consideration of the above cited decision, in my opinion, Section 112 of the Evidence Act does not come to the rescue of the petitioner

herein. This Section would apply only when the father is able to establish that he has no access to have sexual intercourse with the woman and only

then, the man cannot be said to be the father. But in the present case, the positive evidence of the woman is that it was the petitioner, who has

fathered the child and therefore, it is but necessary that the blood has to be necessarily analyzed.

In this context, it would be pertinent to extract Section 53 of the Criminal Procedure Code, which reads as follows:

Examination of accused by medical practitioner at the request of police officer-

(1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such

circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an

offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for

any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in

order to ascertain the facts which may afford such evidence and to use such force as is reasonably necessary for that purpose.

(2) Whenever the person of a female is to be examined under this Section, the examination shall be made only by, or under the supervision of, a

female registered medical practitioner.

Therefore, from the above, it is clear that full power is given to the investigating agency to cause the accused to be examined by the Medical

practitioner and the Section does not restrict to any particular test that has to be done by the Medical practitioner. A reading of the Section would

disclose that all positive methods and necessary tests are included within the ambit of Section 53 of the Criminal Procedure Code. Therefore, in the

circumstances of the case, I feel that the learned Magistrate is perfectly justified in directing the petitioner to undergo the blood test and

consequently, I have no hesitation to dismiss this revision and the same is accordingly, dismissed.